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Corporate Enterprise as Commonwealth

Stephen Healy

Deepening ecological crisis alongside a half century of widening inequality and economic instability are evidence that Business as Usual cannot go on. Transformation is required, particularly in the realm of corporate activity, the business of business. Shareholder primacy is a powerful social norm that constrains transformation. It positions publicly traded corporations as compelled by competitive necessity and bound by law to place shareholder returns first. This paper reviews critical legal theory that questions the historical precedence, legal coherence and practical consequence of shareholder primacy in corporate law. I consider Deakin’s (2011) suggestion that it might be more appropriate to think of the corporation as a commons managed for the benefit of multiple parties. In my view Deakin’s conceptualisation might be further elaborated by turning to other traditions in enterprise formation, most notably those that have shaped the cooperative form in Italy and elsewhere.